page 360 note 2 This doctrine of the “semblance” is considerably wider than appears in this article. Thus the punishment prescribed for zinā is held to lapse by reason of three different kinds of “shubha” classified respectively (according to the view attributed to Abu Hanifa) as (1)Shubha fi'l-mahall, (2)Shubha fi'l-fi‘l (sometimes also called “shubhat ishtibāh”), (3)Shubha fi'l-'aqd. Only (3), the “semblance in the contract”, has been treated in this article, but a few words about (1) and (2) may be useful.
Examples of (1), “semblance in the subject”, found in the Arabic texts include relations between a man and his son's slave girl, between a co-owner and his partially-owned female slave, and between a man and a wife whom he has finally divorced in implicit rather than explicit terms during the continuance of her ‘idda period. The principle which connects these varied examples is the fact that some actual proof of lawful right exists in each case. With regard to the son's slave this is based on the Prophetic maxim that “Thou and thine are thy father's” in the case of the partly owned slave on the fact of partial ownership; and in the case of the wife finally divorced by implicit terms on the fact that ‘Umar only regarded such a divorce as revocable, and her ‘idda period had not yet elapsed. In all these illustrations, therefore, the ” semblance“ of right is held to rebut the prescribed punishment in all cases, regardless of whether the parties actually concerned were or were not conscious of the illegality.
Examples of (2), the “semblance of the act”, mentioned in the texts include relations between a man and a slave girl owned by his wife, father, or mother; between a man and his triply divorced wife, or his wife finally divorced for a consideration, during the continuance of her ‘idda period; and of a man with a woman he genuinely mistakes for his newly wedded wife (cp. the classic instance of Jacob and Leah). In all these cases no valid claim of lawful right of any sort exists, and relations are in each case properly classified as zinā. If, however, the party concerned claims that he really believed, in the last example, that the woman was his lawful wife; in the case of the divorcees that the continuance of the ‘idda period and of certain resultant obligations of marriage made such relations lawful; and in the case of the slave girls that the right to their general services included the right to concubinage—then, and then only, will the prescribed punishment lapse in his individual case because of this slender “semblance ”.
It may be added that shubha in this context has sometimes been translated “error” (see Hamilton's Hidaya, Vol. VII, Chap. 2). This is probably attributable to the fact that the word came to be used in a subjective, as well as the normal objective, sense (see instances under 2 above): the very term “shubhai ishtibāh”, used as an alternative for “shublui fi'l-fi'l”, shows how the primary meaning of ‘resemblance’ has passed over to the secondary sense of ‘confusedness’. There is, however, a certain advantage in translating the word according to its primary meaning, “semblance”, throughout.
